VA POA Laws:
A Virginia power of attorney is a power of attorney form must comply with Uniform Power of Attorney Act, Chapter 16 of the Code of Virginia. This code specifically outlines the parameters of a legally enforceable power of attorney and ensures that the form, as well as its duties, are protected under the law. Here are some of the state’s power of attorney requirements:
- The attorney-in-fact and the principal must be a legal adult.
- The principal must be of sound mind and understand what they are signing.
- Virginia law does not require the principal's signature to be witnessed or notarized; however, signing in front of a notary public could make it more likely to have the POA accepted by a third-party in another state should the need arise.
- Hot powers, the powers the agent can exercise, must be explicitly stated by the principal.
As of 2010, the principal is required to clearly list the agent's authority. That is where the term "hot powers" comes from. Common hot powers include an agent's authority to make gifts; the agent's ability to create, amend, or revoke an inter vivos trust; create or change rights of survivorship; create or change a beneficiary designation; delegate authority granted under a POA; waive the principal's rights to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or exercise fiduciary powers that the principal has authority to delegate.
The principal retains the right to revoke (terminate) the power of attorney as long as they are competent, including durable powers of attorney. Additionally, a Virginia power of attorney terminates when:
- The principal dies.
- The principal becomes incapacitated and the power of attorney is not durable.
- The purpose of the power of attorney is fulfilled or its expiration date has passed.
- The agent dies, becomes incapacitated, or steps down and there is no co-agent or successor agent named.
- The principal and agent are married and subsequently file for divorce, annulment, or legal separation.
- The principal or agent files for divorce or legal separation from each other and one is awarded separate maintenance from the other.
- The principal or agent files for divorce or legal separation from each other and one is awarded custody or visitation of a child they share.
Why Would You Use a Virginia Power of Attorney Form?
There are many reasons why someone would use a Virginia power of attorney to give another person the ability to make decisions related to their tangible property, financial institution transactions, tax matters, or their well-being. Some of those reasons include:
- Their age, a mental health concern, or the diagnosis of an illness. They may want their affairs handled in specific ways. It is generally advised that everyone, including those in perfect health and those diagnosed with a terminal illness, have the proper power of attorney in place to ensure their matters are properly handled and that their wishes are fulfilled.
- A person diagnosed with a mental illness may need a different power of attorney than a person diagnosed with a terminal illness.
- A person who has dependent children may need a different power of attorney than a person who does not have dependent children.
Each person’s need for a power of attorney varies depending on their circumstances. There are several types available. Before you decide which to use, seek legal advice and ask about which would best suit your needs as well as how to revoke a power of attorney if it becomes necessary. Here are the most commonly used Virginia power of attorney forms.
General Power of Attorney
A general power of attorney grants a broad power to an agent to handle the affairs of the principal.
- Generally, it is thought of as a financial power of attorney. However, it is important to remember that Virginia requires that certain hot powers be specifically given. With that being said, if the principal becomes incapacitated or dies, the POA becomes terminated. The principal may also revoke the document as long as they are competent.
Durable Power of Attorney
A durable power of attorney is an "extended version" of a general power of attorney because it goes beyond the parameters of a general power of attorney.
- The term "durable" comes from the fact that this authorization continues over the principal if they become incapacitated. Remember that the State of Virginia requires that the powers the agent can exercise be specifically listed and that the principal may revoke the POA as long as they are competent.
Limited (Springing) Power of Attorney
A limited power of attorney, also known as a special power of attorney, grants limited power to whatever the principal specifies.
- In many cases, an agent will have power to handle finances, or make medical decisions, but will not have authority to do other things such as sell personal property (depending on what the principal decides). Just like a special power of attorney, the authority terminates if the principal dies. In Virginia, this is also referred to as a springing power of attorney because it can "spring" into effect upon a certain or discreet circumstance. Once the purpose of the POA is fulfilled, the document terminates. The principal may also revoke the document.
Medical Power of Attorney
A medical power of attorney is a POA that gives the agent the ability to make healthcare decisions on behalf of the principal.
- This type of POA may be durable or nondurable. When a medical power of attorney is nondurable, it becomes invalid if the principal becomes incapacitated. If it is durable, the agent can make medical decisions if the principal becomes incapacitated, but there are limitations. The agent may not make end-of-life decisions. The Virginia State Bar provides a free PDF of an advance directive for healthcare. It should be completed by the principal while the principal is still of sound mind.
Minor (Parental) Power of Attorney
A minor (parental) power of attorney allows a parent or a guardian to grant decision-making rights over their child to a temporary guardian in the event that the parent or guardian may not be present during a medical emergency.
- This form is generally used if the parent or guardian must leave the country for a period of time. It may also be used if the minor child will temporarily live with or travel with another adult who is not their parent or guardian.
Real Estate Power of Attorney
A real estate power of attorney grants power to the agent to buy, sell, and manage real estate on the principal's behalf.
- A real estate power of attorney is incredibly flexible. It can be durable or non-durable. Before using this type of POA, you should seek legal advice so that you fully understand how it operates.
Tax Power of Attorney
A tax power of attorney, officially known in Virginia as Form PAR-101, allows the agent who is usually a qualified individual such as an accountant, to prepare and submit tax information to Virginia Tax on behalf of the principal.
Vehicle Power of Attorney
A vehicle power of attorney, officially known as Form VSA-70, which allows the agent to buy, sell, and handle the necessary paperwork with the Virginia Department of Motor Vehicles on the principal's behalf.